In page 5, between lines 21 and 22, to insert the following:“ “child” means a person under the age of 18 years;”.

I welcome our visitors to the Visitors’ Gallery and I congratulate Senator Zappone. I did not speak on that amendment because I intend to say a great deal on this substantive point. I do not plan to speak on other matters, but this is an issue that is very close to my heart. I thank my colleagues Senators Mac Conghail and Zappone for supporting me in the grouping of amendments I tabled. I see that colleagues have similar intentions with the amendments they have put forward. I also thank the Minister for engaging with us.

Children’s rights:

I will outline the reason for this amendment. I do not intend to push it to a vote today but I intend to press it, or a similar wording of it, to a vote on Report Stage as I am very passionate about this issue.

The rationale behind the amendments I have tabled derives from what will be Article 42A.1 of the Constitution, depending on the Supreme Court judgment, which states: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

In my Irish Mirror column yesterday I spoke about Ireland’s shocking record in respect of the treatment, welfare and well-being of children in Ireland, especially vulnerable children whose vulnerability we appear to compound systematically.

I noted the significance of the successful passage of the children’s rights referendum on 10 November 2012, which sought to incorporate into Irish constitutional law the principles that children have rights as individual human beings, independent of adults and that their best interests and opinions are vital when important decisions are being made about their lives. The Irish people have spoken out and spoken up for children.

To my great frustration, these principles, which Ireland is already bound to respect under the UN Convention on the Rights of the Child, have not yet taken constitutional effect because we are still awaiting a final decision from the Supreme Court on the legal challenge to the referendum. I am very aware of the pressure and backlog of cases at the Supreme Court but part of me wonders why, after 26 months of delay, we do not have a public outcry. Despite a systemic change of mind set in recent years, we still have a long way to go to fully embrace the urgency of children’s rights.

It is very clear to me, having actively engaged at all levels of the consultation and debate around the wording of the constitutional amendment, that it was the intention of the Legislature and of the people in passing the referendum to enshrine children’s rights in the Constitution so that their rights will be safeguarded and vindicated in all future legislation.

The aforementioned UN convention, which Ireland ratified in 1992, sets out an integrated and holistic approach to the rights of children and is internationally accepted as the model of implementation at domestic level.

As far as I am concerned, in the drafting of any Bill which impacts on children’s lives, it is now incumbent on us as legislators to ensure that the best interests of the child are the paramount consideration, the views of the child are heard when key decisions are being made about the child’s life and that the evolving capacity of the child is facilitated.

I believe that this Bill, specifically section 11 as currently drafted, fails to safeguard and vindicate children’s rights in accordance with international law and the constitutional imperatives. In fact, the rights of children under the age of 16 are not even open to consideration.

I will refer now to amendments Nos. 15 and 17.

Gender recognition is an established human right to which children, as individual rights holders, should be entitled.

The development of gender identity in children:

In preparing for this debate today, I have looked for commentary or evidence about the age at which gender identity develops and was struck by the real dearth of research into transgender children. In fact, there is no incidence or prevalence data from Ireland or the UK on the number of transgender young people under 18. Of the research that was available, I noted that some paediatric specialists put the age of gender identity in children, whether transgender or not, at two or three. Other research cites gender identity development as occurring between three and five years of age.

Elizabeth Reilly et al published a very interesting piece of qualitative research on the issue which solicited the views of transgender adults about the needs of gender-variant children and their parents in the Journal of Sex and Marital Therapy – the peer-reviewed scientific journal published by Routledge – in 2013.

The researchers found that 94% of transgender adults had identified their gender before the age of 18, some 48% had identified their gender between zero and five years of age, while 44% had identified their gender between the age of six and 14.Only 2% identified their gender between 13 and 18 and only 2% after the age of 18, while 4% of the respondents did not reply. That is a pretty good indication of what period of a child’s life is important in terms of gender identification and goes to the essence of what we are talking about here.

There was a time in Ireland, during the last century, when it was widely believed that people did not become aware of their sexual orientation until they reached adulthood. It was commonly believed that this was something a person decided or determined but thankfully, we are more enlightened as a society now and more understanding of the reality. When it comes to gender recognition, however, we are still back in the last century and that way of thinking. I would like us to understand that it is actually at an earlier age that one’s gender identity is realised and understood. We need to accepted that fact.

The exclusion of children under 16 years from the Bill:

That is why I have an issue with this Bill, which actively excludes children under 16 from its provisions for making an application for a gender recognition certificate. It denies outright any consideration of their best interests in the context of their personal circumstances. I believe that this runs contrary to the best interest of the child principle.

A good example of how this outright denial has serious implications for the transgender and intersex child is seen in the S v. Bord Uchtála case of 2009.

That case involved an intersex child, born abroad, who had been registered as female at birth, was subject to a foreign adoption order and brought to Ireland to live. Upon examination by medical experts in Ireland and the United States, it was concluded that the child would most likely identify as a male and the decision was taken by the adoptive parents to raise the child as a boy. The parents sought an amendment of the register of foreign adoptions so that the child’s paperwork would reflect his gender of rearing and so that he could be registered at the local boy’s school. The Adoption Board refused the application on the basis that it did not believe it had the authority to grant this request. On judicial review in the High Court, Mr. Justice Sheehan granted the request but the difficulty is that this was an ex tempore judgment and not a precedent.

I am concerned that a different judge, even in similar circumstances, might feel that he or she lacked the authority to grant such an order, given the discourse on this issue. In fact, I am worried that by introducing this legislation and being deliberately silent on children under 16, we are sending a clear message to the courts that they should never grant such an order. I will be seeking advice on this because a judge in a future case, similar to the one to which I referred, may find it extremely difficult to make a similar order.

In the aforementioned case, those involved – both the parents and the child – agreed with the order. With this legislation, we are saying, “We know best. Go to a girl’s school”. We would be telling a young boy to go to a girl’s school because we know best what is good for him and what is in his best interests. I believe that the best interests of that child were served by allowing him to be identified with the gender of his preference, with which his parents concurred.

International precedent:

Argentina

In terms of international precedent, in October 2013 the Argentinian authorities granted a female identification card and amended birth certificate to a transgender six year old Luna, formerly Manuel, under that country’s ground-breaking gender identity law which allows people to change their name and sex without approval from either a doctor or a judge.

Under Argentinian gender identity law, individuals have the right to the recognition of their gender identity. Individuals are also legally entitled to the free development of their person according to their gender identity and to be treated according to that identity, particularly to be identified in that way in the documents proving their identity, including the first name, image and sex recorded there.

According to the law, gender identity is understood as the internal and individual way in which a gender is perceived by persons that can correspond, or not, to the gender assigned at birth including the personal experience of the body. This can involve modifying bodily appearance or functions but it can also include other expressions of gender, such as dress, ways of speaking and gestures.

Malta
I have heard this legislation before us described as progressive but as I speak, similar legislation is being debated in Malta which definitely is progressive. That legislation takes into consideration the lived life which is what we should be aspiring to here.

The Gender Identity Bill, which is today having its second reading in Malta’s Parliament and is expected to pass with cross-party support, proposes to change its civil rights legislation by removing the requirement that a child be given a gender at birth.

The Bill states: “The persons exercising parental authority over the minor, or the tutor of the minor whose gender has not been declared at birth, shall, before the minor attains the age of 14, by means of a public deed, declare the gender of the minor”.

I thought that perhaps Malta would not face the same issues as we do in the context of single sex schools but I discovered that the majority of State-run secondary schools there are also single sex. Malta is able to deal with this issue and ensure that it acts in the best interest of the child.

Access to education in the child’s preferred gender:

I am particularly concerned about the mechanisms we need to have in place to minimise the challenges currently faced by transsexual and intersex children in Ireland.

Examples of challenges are the segregated nature of our educational system and the requirement that parents must submit birth certificates for registration. Education, on which there is an amendment tabled, is a specific area to be considered but there are other settings in which children experience challenges. We may find a work-around.

Efforts being made in other jurisdictions:

In preparing for this debate, I was looking for examples.

California

In California in January 2014, Assembly Bill 1266, or the school Success and Opportunity Act, came into effect for K-12 students, who are between four and 19 years old, in the public school system.

The law inserted the following provision into the existing legislation: “A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”

In response to the new provision, Masen Davis, executive director of the Transgender Law Center in San Francisco, stated: “Now, every transgender student in California will be able to get up in the morning knowing that when they go to school as their authentic self they will have the same fair chance at success as their classmates.”

Compounding vulnerability:

Transsexual and intersex children are inherently vulnerable because of their age and lack of legal protection. We have an opportunity to lessen this vulnerability but instead we choose to turn a blind eye or put up an artificial barrier, despite the fact that evidence suggests, and adults have said, that it is in children’s younger years that their gender identity is developed.

I am thinking of the six year old child who has clearly articulated his preferred gender and which has been fully embraced by his parents, friends, extended family and community. Is this young child, a boy, really going to be forced to go through a girls’ school wearing a girl’s uniform and using the wrong name and pronouns to gain access to the education available in his locality? That is what we are doing to children in these circumstances.

Are we really preparing to stand over legislation that in the case of the boy in question would cause unnecessary distress, embarrassment and humiliation, and potentially serious psychological harm, for ten years before he is eligible to apply to have his gender identity recognised?

Legislation that fails to listen to the voice of children or consider their best interests is not legislation I want to stand over.

Where a child has clearly articulated views regarding his or her preferred gender, or where the child has an intersex condition that might merit a change in gender and legal recognition, he or she should be facilitated in achieving this end, especially where all parties agree.

We do not even have a system where all parties can agree. In the amendments we have tabled, we have sought to find ways in which all parties can agree and, where they do not, where disagreement can be dealt with.

Issues around consent:

According to the Bill as currently drafted, 16 and 17 year olds will need an order from the court allowing them to apply to the Minister for a gender recognition certificate. The amendment I have tabled puts the best interest of the child front and centre in the court’s consideration, which is where it should be. I do not believe it should be a matter for any medical practitioner or psychologist. We should allow cases to be dealt with in court to ensure the child’s rights are upheld and protected.

The amendment is to secure the consent of the person referred to in subsection (4)(a) since the current drafting means the court has no authority to override the non-consent of an individual.

We need to have the measure I propose because we need to adhere to the principle of the best interest of the child. We do this with other types of legislation, such as adoption legislation.For me, the current provisions fly in the face of the requirement to ensure in our laws that the child’s best interest should determine the process.

Furthermore, the fact that the process for achieving gender recognition is open only to 16 and 17 year olds on consent does not make sense to me. Under the Non-Fatal Offences against the Person Act 1997, 16 and 17 year old children can choose, if they wish, to seek medical services as part of a medical transition process in their own right. They have full consent to go through the medical processes, yet the Bill requires parental consent to apply for a gender recognition certificate. The thinking is that children can undergo any medical procedure they wish but, to get the piece of paper, we need to protect them and involve their parents. It just does not add up.

I am genuinely concerned about the absence of a provision ensuring the best interest of the child. When the general scheme of the legislation was made available, the Ombudsman for Children advised that, if we had this process, an “illogical situation would arise in which the State would countenance a young person receiving the relevant medical treatment on the strength of his or her own consent, yet that consent would be insufficient to obtain legal recognition of the young person’s preferred gender and the outcome of that treatment”.

I hope the constitutional amendment will come into effect shortly. In any case, we have an obligation, having ratified the UN Convention on the Rights of the Child, to ensure we have the best interest of the child at the heart of all our legislation.

That we are silent about those aged 16 and below would not allow for the court case I spoke of or any other court cases in which a judge could use his or her discretion. As legislators, we cannot stand over that. We need to go back to the drawing board and consider the best interest of the child and find a mechanism on which everyone can agree, allowing children to live their lives as they desire.

Can you imagine trying to live your life as another person with a different identity? One might regard oneself as a “she” but be called “he” and be expected to conform by wearing certain clothing. We know clothing is a big issue for young people in schools. Are we really to deny their voice, best interests and what we now know about children, that is, that they have an evolving capacity and are able to make these decisions? We can find a structure that safeguards them and regards their best interest as paramount.

“I welcome Judge Catherine McGuinness. It was a joy to listen to her, but her words have provided us with a stark reminder and challenged us in this House for work ahead. I note her work on the Children’s Rights Alliance Report Card, and she rightly pointed to the work of Tanya Ward, Maria Corbett and all the team at the Children’s Rights Alliance. She also pointed to work of the member organisations of the Children’s Rights Alliance which come together to provide evidence and put together the Report Card. I am delighted to welcome representatives of many of them to the Gallery. In fact, we could not fit them all in, so there are people in the wings waiting and listening. I could use up all my time listing every organisation, but I want to focus on some current issues. I want also to note the work being done by the Special Rapporteur on Child Protection, Geoffrey Shannon, and his annual report. His report and that of the Children’s Rights Alliance provide an invaluable tool for me as a legislator and policymaker. It is good to see that the state supports these initiatives.

The programme for Government 2011 to 2016 set out an ambitious reform agenda for children and family services. Senator Bacik has listed many of the things that have been accomplished since then. Equally, there are areas of concern that impact on the daily lives of children and we need to shine a light on those. As I am sure Ms McGuinness and my colleagues in this House will know, I am strongly committed to pursuing the gamut of children’s rights through my “senatorship”. We have had in this Senate excellent debates on children’s rights, most recently on beauty pageants and protecting childhood. In the autumn, we had a interesting debate on direct provision and valuing youth work. They were really good, informative debates and I pay tribute to my colleagues.

Other speakers have mentioned survivors. When I have met survivors over the years – we were campaigning before the children’s rights referendum became a reality – many said to me that the real testament would be to see children’s rights articulated in the Constitution of Ireland. Chief among the advancements that we have made was the passage of the children’s rights referendum on 10 November 2012. Unfortunately, the enactment of the amendment Bill, the will of Irish people, has been subject to lengthy postponement pending finalisation of the second part of a legal challenge by Mr. Justice McDermott in the High Court before a full appeal can proceed to the Supreme Court. The delay in the legal process is a source of frustration when I think of the body of legislation that has been passed since November 2011 that could have benefited from a constitutionally recognised best interests of the child principle. I also feel sadness when I think of the number of children of married parents, many of whom have spent the vast majority of their childhoods in the care system, who have now turned 18 since we voted as the people of Ireland and are eligible for adoption. Their rights have been expunged. It is my sincere hope that priority is given to the delivery of the judgment in the High Court, that the challenge will be given priority listing in the Supreme Court and that it is ruled upon as expediently as possible.

While Ms McGuinness is before us, I want to address two specific issues that are facing children today and seek her guidance. Chapter 5.4 of the Children’s Rights Alliance Report Card looks at children in detention. It states that, according to a communication that the alliance received from the Department of Children and Youth Affairs, 103 young people were detained on remand in 2013 for 138 different periods ranging from one day to several months. We have to bear in mind that a young person may be remanded more than once pending the outcome of proceedings. The number of children detained on remand, particularly the significant percentage of them who do not go on to receive a custodial sentence, raises serious concerns about Ireland’s compliance with the international and domestic principles of detention as a last resort for children, which incorporate a presumption against detention of children accused of criminal offences. I want to ask Judge McGuinness’s opinion on the practice of the Children Court of remanding children for assessment despite section 88(13) of the Children’s Act clearly stipulating that the court should not remand a child in detention on the basis solely of care or protection concerns. I want to ask her how the absence of a formal system of bail support and services in Ireland impacts on a child’s ability to meet their bail conditions, with the consequent risk of their receiving a custodial remand for failure to comply.

The second issue that I want to raise is that of direct provision, which Ms McGuinness mentioned. Chapter 6 of the Report Card opens with a piece by Dr. Liam Thornton entitled, “Closing Our Eyes: Irish Society and Direct Provision”. Dr. Thornton has done some excellent work, as have many NGOs such as the Irish Refugee Council and Doras Luimní. I put forward a motion on direct provision in this House last October. We were all at one on this issue. Unfortunately, the Minister then was not at one with us, but we will keep pursuing it and we have a very good Seanad cross-party group working on the issue. We know the high number of children who are in the 34 direct provision accommodation centres. Can Ms McGuinness give us advice on what immediate action could provide greater protection to children who are caught in the direct provision system? What could we do in the immediate future? All Senators in this House have agreed that such centres are not places for a child to be accommodated, especially beyond three-month or six-month period. I thank Ms McGuinness again for her address. She has given us many challenges.”

Arc Adoption, Childminding Ireland, Inclusion Ireland, Irish Youth Foundation and Treoir joint with Senator van Turnhout to call for a YES vote in the Children’s Referendum on 10 November 2012

Senator Jillian van Turnhout today, Tuesday 30 October 2012, hosted a joint press conference to announce the support and share the views of some key NGOs who through their work will be affected by the provisions of the Children’s Referendum.

Senator Jillian van Turnhout says: “the question I have been asked most frequently about the Referendum is whether I think strengthening children’s rights in the Constitution is really necessary? My answer is an unequivocal YES. This is not a time for complacency. I believe by strengthening children’s rights in the Constitution we will protect and support children in Ireland.”

The NGO’s participating in the press conference; Arc Adoption; Childminding Ireland; Inclusion Ireland; Irish Youth Foundation and Treoir were equally unequivocal in their support for a YES vote:

Shane Downer, Arc Adoption says: “This referendum will allow us, as a society, to choose to protect and cherish our most vulnerable children. It is time to vote yes. It’s time to make a clear, strong statement that all our children matter, and that Ireland can be a great place to be a child. Arc Adoption urges everyone to vote yes on November 10th.”

Paddy Connolly, Inclusion Ireland says: “The rights of children with an intellectual disability and autism have been disregarded by successive Governments. Inclusion Ireland, in calling on its members to vote Yes, believes that the Children’s Referendum marks a progression towards the recognition of the rights of all children, including children with a disability. A Yes vote on the 10th November will tell parents of children with disabilities that the people of Ireland support the rights of their children to the supports and services they need.”

Niall McLoughlin, Irish Youth Foundation says: “The Irish Youth Foundation (IYF) supports children who, due to a wide range of social factors are denied their most basic rights – the right to be supported by caring adults, the right to a way of life that is free of fear and discrimination and the right to an education which meets all of their needs. The IYF strongly supports a strengthening of the rights of children in Ireland and encourages a Yes vote in the Children’s Referendum.”

Margot Doherty, Treoir says: “The Children’s Referendum, if passed, will mean that for the first time there will be a clear statement of children’s rights in the Irish Constitution. Treoir believes that inherent in these rights are a child’s right to identity and to a relationship with both parents.”

Patricia Murray, Childminding Ireland says: “Childminding Ireland urges every man and woman over 18 to remember our own childhoods, whether happy, wholesome, and healthy, or difficult, even dangerous, to vote YES in this referendum so that everyone of us will play our part to secure for each child the right to fair play, i.e. equal treatment with other children, as a young citizen of Ireland and the right for each child to have his or her own voice heard.”

– Senator Jillian van Turnhout is a leading children’s rights activist and Leader of the Independent Group of Senators (Taoiseach’s Nominees)

– Arc Adoption is an intercountry adoption mediation agency enabling ethical adoption of eligible and available children in need of loving and secure home, into suitable adoptive families.

– Childminding Ireland is a membership organisation founded in 1983 to promote the development of quality in family based care for children

– Inclusion Ireland is a national organisation advocating for the rights of people with an intellectual disability and their families.

– Irish Youth Foundation is a non-governmental organisation seeking to provide opportunities for children and young people facing adverse and extreme conditions to experience success in their lives.

– Treoir is a membership organisation which promotes the legal and social rights of unmarried parents and their children in Ireland. Treoir provides a National Information Service to unmarried families and those involved with them.

To ask the Minister for Children and Youth Affairs to provide the most up-to date figures on the following, in relation to Special Care Placements:

a) What is the current waiting list for Special Care Placement?

As of 11th March 2014, there was one young person waiting for a special care placement. There have been ten admissions to Special Care since 1st January of this year.

b) How many applications have been made to date since the beginning of 2013?

From 1st January 2013 to 5th March 2014 there were 116 special care applications – 22 of these applications were re-referrals.

c) How many of these applications were successful?

Forty applications were successful, 27 were withdrawn or removed by the relevant Social Work Department, 46 were not approved and there were three in 2014 where further information had been sought and a decision has not yet been made. A Social Worker making an application for a Special Care place will also work to put in place other supportive mechanisms for the child while they await the outcome of the application. Where it is found that the alternative supports are meeting the needs of the child without the necessity of detaining the child for his/her own safety, the preference is to continue with the alternative programme. Where a child has been sentenced to detention in a Detention School, the child’s application for Special Care is withdrawn.

There is an appeals process available to Social Workers if they disagree with the decision where a child’s application to Special Care was unsuccessful. The Social Worker will also consider the Care Plan for the child and make other arrangements to find the most appropriate placement for that child. An unsuccessful application does not preclude the Social Work Department from applying at any other stage, especially in light of a child’s needs changing.

d) How many State provided places are there in mainstream residential care and

e) How many are provided by Private Providers?

All Special Care placements in Ireland are operated by the Child and Family Agency and placements are under the direction of the High Court. There are no private providers of Special Care Services in Ireland, however some children with complex needs are placed out of State.

More generally, in December 2013 there were 142 Children’s Residential Centres in operation throughout the country; 47 of which were Agency-managed; 28 were run by the voluntary Sector; and 67 were operated by private providers. These centres are typically found in domestic homes in housing estates, on the outskirts of towns and villages. The centres typically have between three and six children. These children are usually in their teens. There is always some flux in placements available as services adapt to meet the needs of the resident children.

In December 2013, there were 356 children in care placed across the different types of residential care. Of these there were 143 children placed in the 67 privately run centres.

f) What is the allocated budget for private provision?

The cost of the provision of mainstream residential placements in the privately-owned children’s residential centres for 2013 was approximately €50m. To date private placements have been commissioned on the basis of a child’s needs which will influence staffing ratio, the need for live-staff at night and additional supports to the child in the placement. There has been a consistent and predictable spend in respect of this type of residential provision, which reflects demand.

Significant work is under way within the Agency to secure the most appropriate and cost-effective care for children in the different settings in which they are accommodated. In early 2012 the HSE’s Children and Family Services undertook a tendering campaign to secure 80 places at a cost of €18.7 m per annum or €4,500 per place purchased for a two year period (extendible for a further two years if required). This arrangement will be for children whose needs can be met in a centre caring for 3 or 4 children. The process is now complete and contracts are currently being awarded in respect of 2014. It is estimated that the procurement arrangements utilised will reduce the spend in this area by €3.9m in 2014.

Any additional places that will be required will be purchased on an individual basis and in some cases may be more expensive where bespoke placements are commissioned for young people with particularly challenging needs.

The Agency has been working to increase value for money in this area by, as outlined above, seeking to promote cost effectiveness within the different options available and also moving to fostering where appropriate.

The Agency intends to undertake a centre activity audit of all aspects of residential care in 2014, and this will allow for a level of comparison of cost of placement across private and public group children’s centres and individual placement arrangements.

To ask the Minister what action the Government is taking to implement the EU Commission Recommendation (20 February 2013) Investing in children: breaking the cycle of disadvantage, concerning child poverty and well-being and, having acknowledged that tackling poverty requires a whole-of-Government approach, will DCYA carry out a social impact assessment on any fiscal adjustments in Budget 2015 and onwards?

Ireland, led by the Department of Children & Youth Affairs (the first such Department in any EU member state), is committed to improving the lives and experiences of Ireland’s children and young people.

Many of the actions being implemented by this Government are in line with the EU Commission recommendation on ‘Investing in Children’ which was adopted by the Council of Ministers in 2013. These actions include:

· Protecting and enhancing children’s rights on foot of the decision of the people in the Children’s Referendum 2012;

· Improving child protection, welfare and family support services through the newly established Child & Family Agency;

· Continuing to be a world leader in both the areas of children’s participation (through the national Dáil na nÓg and local Comhairle na NÓg model); and childhood research (through the ‘Growing Up in Ireland’ longitudinal study and ‘State of the Nation’s Children’ reports).

Tackling Child Poverty

The EU recommendation on ‘Investing in Children’ includes a significant focus on tackling child poverty, referencing the ‘setting of national targets for reducing child poverty’ and access to quality services.

The draft National Policy Framework for Children & Young People, which is being prepared by my Department and which is due to be considered by Government shortly, currently includes a commitment to address child poverty.

With respect to services, my Department is responding through initiatives such as establishment of the Child & Family Agency (with an enhanced focus on prevention, early intervention and family support) and the roll-out of the €30m Area Based Childhood (ABC) Programme.

Early Years/Childcare

The EU recommendation on ‘Investing in Children’ recognises the importance of early childhood education and care. The EU Commission has set a target of member states having at least 95% of four year olds in pre-school. Ireland is in compliance with this target through provision of the free pre-school year.

The EU recommendation on ‘Investing in Children’ also recognises the importance of access to affordable childcare. In this context I announced a review of existing targeted childcare schemes to consider how best to structure future childcare support, to both support working families and to incentivise labour market activation, which could be expanded to more families as resources allow.

Delivering improvements in quality standards and staff qualifications is a critical precursor to any future expansion of universal childcare provision and/or Government supports.I have prioritised implementation of an eight-point Quality Agenda, and there has been significant and unprecedented progress in the implementation of this agenda over the past eight months. This will continue in 2014 with establishment of landmark new National Quality Support Service, which is being seen a significant development in the context of developing EU policy.

Social impact assessment

In February 2012, the Government decided to develop an integrated social impact assessment to strengthen implementation of the new national social target for poverty reduction and to facilitate greater policy coordination in the social sphere.

Work in the area of social impact assessment is being led by the Department of Social Protection. A social impact assessment of Budget 2014 was published in February 2014 by that Department. My own Department liaises regularly with the Department of Social Protection to ensure a child-centred approach informs such assessments and consequently provides learning to use in the development of our policy and service responses for children.

Question 11: Amendment to Childcare Act 1991.

Can the Minister provide a timeline for the delivery of the legislation to amend the Child Care Act, 1991, to provide a statutory right to the preparation of an aftercare plan for eligible young people leaving care and will the Minister consider extending this statutory support to young people leaving detention, as they often present with very similar needs?

The amendment to the Child Care Act 1991 to strengthen the aftercare provisions for children in care was approved by Government on 25 February 2014 for publication, and has been submitted to this Committee for its consideration.

I understand that the Committee plans to consider the matter during the month of April. Following the Committee’s deliberations the text of the amendment may need to be refined in conjunction with the Office of the Parliamentary Counsel, after which a timeframe for the progression of the legislation will be discussed and agreed with the Houses of the Oireachtas. I am very appreciative of the work of the Joint Committee and the contribution of the members.

Regarding children leaving detention, on average approximately one third of such children normally would have care orders and so would, in the main, be required to have an aftercare plan prepared by the Child and Family Agency.

At present, the mechanism for supervision of a child post-release from a sentence of detention (other than those who were in the care of the Child and Family Agency) is by the Probation Service if the courts impose a “detention and supervision” (i.e. in the community) order at conviction stage. Extending the right to an aftercare plan to all children completing a sentence of detention would require significant and detailed examination by officials in the relevant units of my Department, and the relevant other Departments and agencies involved, before any recommendations in relation to the matter might be formulated.

Minister both you and colleagues have clearly outlined that the scenario leading up to the need for this legislation. Minister, it is evident that you, your officials and indeed the Tánaiste, have sought resolution through other channels and at every level but that proved impossible. Changes to Russian family court laws have had serious implications in conjunction with existing Irish legislation for prospective adoptive parents. Which brings us to the legislation before the house today.

I believe it is tightly framed with limitations added and will address the calls you have received from approximately 5 prospective adoptive parents. However it also opens up any unused Russian Declarations as of 31 October 2013 which you have clarified is a maximum of 23 prospective adoptive parents.

Anyone who talked or has met the prospective parents appreciates the heartbreak and emotional roller-coaster of the journey that they have had and so I realise that for them today is a good day.

I will not oppose the Bill. I do not want to frustrate the resolution to this particular situation. However, I am duty bound to raise my general concerns and some specific questions about how we approach adoption in Ireland.

Ireland has a very chequered history when it comes to Adoption.

In 2010 we incorporated the Hague Convention into Irish Law. The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) . It protects children and their families against the risks of illegal, irregular, premature or ill-prepared adoptions abroad. This Convention reinforces the UN Convention on the Rights of the Child (Art. 21) and seeks to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights

Article 21 of the UN Convention of the Rights of the Child addresses the protection and promotion of children’s rights in the context of adoption. It establishes the paramountcy of children’s best interests in all adoption arrangements and details minimum requirements for adoption procedures.

Yet, let us not forget that while Ireland signed the Hague Convention in 1993 we had to be dragged kicking and screaming to incorporate it into our law. When we brought in the Adoption Act in 2010 we were the last EU country to ratify and over 55 countries had already done so.

I think we need to fundamentally reconsider how we approach adoption in Ireland. I believe our system of closed adoptions is not always in the best interest of the child.

Closed adoption is the process by where an infant is adopted by another family, and the record of the biological parent(s) is kept sealed.

Open adoption is a form of adoption in which the biological and adoptive families have access to varying degrees of each other’s personal information and have an option of contact.

In my experience children can cope and distinguish. It is us adults who tie ourselves in knots.

It is my sense that some people misunderstand the rationale behind adoption is the right of couples who cannot conceive to have a child. It was not. Adoption is about, where needed, finding alternative family arrangements for a child and fundamentally it is about the best interests of the child.

Minister, I am keenly aware that as we stand here today there are approximately 50,000 adopted people in Ireland who have no automatic legal right to their birth certificate, no legal right to their medical information or history, or any legal right to tracing information about their identity.

I believe that we will be able to partly address these issues via legislation but aspects of this issue will need to be addressed at constitutional level. I noted last October when we were discussing the Children’s Referendum Bill that it was a missed opportunity not to address right to identity.

I realise that information and tracing is complex but we have to start moving on where change is possible. There is a clear lack of a legal framework. Is the State collecting and ensuring that it has access to important and vital records in relation to children’s identities? Have, for example, the religious orders handed over records to the State that will help when the necessary legislation is in place?

Specifically on the Bill here today, I say well done to the drafters who have worked hard to produce a clear, tightly constructed Bill.

As I stand here I am thinking that in less than 18 years these children will be adults – will they have access to information on their identity?

We saw the fall of Communism 14 years ago and the rush for adoptions? Will Ireland over the coming years have issues to deal with?

I think of Ireland’s history in relation to adoptions and how many ‘went to America’ or in reality were sold to so called ‘good called families’ for a better life.

I don’t think anyone who went to see the movie Philomena wasn’t touched and conflicted by her story. We don’t want to creating situations today that will be the films of tomorrow.

Are we setting a precedent today? The adage ‘hard cases make bad law’ springs to mind. Will we change the law for other groups of people who are not in line with our law and the Hague Convention? Does this not open the gates for other “one-off” fixes?

We have all heard the understandably emotional calls from the 4 or 5 prospective adoptive parents. But let us remember the law today will extend the period for up to 23 prospective adoptive parents.

When a country ratifies the Hague Convention we have seen again and again how the number of children eligible for adoption dramatically falls. Why? Obviously it is because the children were never legitimately available for adoption and often have fallen foul to criminal activity, including corruption and the sale or trafficking of children.

Can we be assured that in any one or more of these cases that significant money has not and will not change hands?

I ask these questions now because one or more of these children, upon turning 18, may have the same difficult questions for their parents. Will we be able to give answers?

It is critical that a rigorous verification process be put in place for all adoptions.

In ending, may I wish each of the children who are to be adopted and to their prospective parents a really happy and fulfilling life.

Nevertheless lets us not forget that adoption is the right of a child, not of adults, and we must ensure that this is not lost sight of. If anything is to be learnt from the Reports such as Ryan and Murphy, it is how crucial it is to have adequate systems in place to protect vulnerable children.

We urgently need to re-examine our approach to adoption. Let us lead and show that we really have learnt from our chequered past.

I congratulate the Tánaiste and Minister for Foreign Affairs, his Department, the permanent missions of Ireland to the United Nations in Geneva and New York, and everyone else involved in Ireland’s successful bid to secure a seat on the UN Human Rights Council in Geneva. It will be an interesting three years and I look forward to Ireland’s renewed focus on the implementation of the Human Rights Council’s universal periodic review recommendations now that we have member status.

With very warm wishes I say “well done” to everyone involved in the successful passage of the referendum on children’s rights, especially to the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald. This is a gratifying time for me personally and professionally.

I have campaigned for many years for this referendum and I anticipated the margin to be much more narrow as this is a difficult issue involving profound social change. Much comparison has been taking place in the media with previous referendums and I note this referendum pertained to social change. As this was a major difference from previous referendums, it is difficult to make comparisons. I believe this referendum will be transformative and the full extent of its impact is not yet known. A case will appear before the Supreme Court in ten or 20 years’ time, after which people will know that on Saturday, 10 November 2012, they made a difference.

However, I also urge caution in dismissing the “No” vote. I spoke at many meetings throughout the country and some of that “No” vote reflected a real fear of the social services and this is something to which Members must listen. One cannot simply dismiss the “No” vote by suggesting they all were anti-government. People have had negative experiences, in the current period or previously as children or as family or friends. Consequently, the Leader should facilitate the appearance in the House of the Minister for Children and Youth Affairs at the earliest opportunity to discuss in particular the report of the task force on the child and family support agency, which was published in July. I believe Members must play a role in shaping that new agency and they should address the fears people have raised.

In addition, Members also could discuss the fifth report of the special rapporteur on child protection and the Ryan report implementation plan, on which a three-year progress report was published earlier today. I also ask the Leader to ask the Minister for Children and Youth Affairs to introduce the adoption Bill to this House first. This issue is intricate and some of the relevant concerns were raised ensuring the debate. I believe this legislation will require timely and well thought-out debate.

Finally, I ask the Leader to schedule a debate in a timely manner after the Supreme Court judgment is given on 11 December. As the date on which the Supreme Court will give its detailed judgment is known, Members should have a timely debate to discuss the full implications.

I raise the issue of the forthcoming referendums. The Referendum Commission has a website up and running but I am concerned that the campaign has just recently been launched. Having carried out informal surveys over the weekend, there seems to be very low public awareness that people must vote on two amendments to the Constitution on 27 October, in addition to the forthcoming presidential election. I worry about changing our Constitution without the electorate being sufficiently informed and involved in debate.

I note that last Thursday in Geneva the Minister for Justice and Equality announced that early in 2012 we will have a referendum to strengthen children’s rights in the Irish Constitution. I ask that we have a debate at the earliest opportunity to discuss the proposals for that referendum to ensure we do not encounter the pitfalls we encountered before.

I thank the Leader for promising to bring the Minister of State with responsibility for European affairs to the House next week to discuss the treaty on stability, co-ordination and governance. Like most of us I am in the process of studying it and will form my own view. I look forward to the upcoming discussion.
I will address two matters, the first of which is the universal periodic review. Members are aware that Ireland’s human rights record was subject to its first universal periodic review hearing last October, and the report of the working group on Ireland’s review, also known as the outcome document, will be adopted by the Human Rights Council during its 19th session on 16 March this year. Of the 126 recommendations contained in the outcome document, the Government has examined and accepted 62, and 49 recommendations are currently under consideration by the Government, with responses to be provided before the Human Rights Council session in March. Some 15 recommendations, the majority of which pertain to reproductive rights and combating racism, have been rejected.

The commitments made by the Government during this process and the potential for further commitments to be made before the adoption of the outcome document should yield significant improvements in the area of prison conditions, children’s rights, gender equality, mental health, freedom of expression and combating racism and discrimination. I ask the Leader to invite the Minister for Justice and Equality, Deputy Shatter, to the Chamber to advise and debate with Senators as to the status of the 49 recommendations under consideration, and to outline how the relevant Departments plan to build on the exemplary consultation process with non-governmental organisations and civil society in the lead-up to Ireland’s review and the next review of 2016.
There is a second issue, although I will not repeat my requests in detail. On 18 and 25 January I asked that the Minister for Children and Youth Affairs be invited to the Seanad to address questions on the proposed children’s referendum, the interim measures for children currently detained in St. Patrick’s institution, the new children and family support agency and the potential to use the Children’s Rights Alliance report card as the basis for this debate. I know there is much talk of referendums in the air but I advise Senators that the children’s referendum needs to take place.

I will give a reason for this. There are 2,000 children in long-term foster care and the referendum would make them eligible for adoption. Once these children turn 18, that right is extinguished, so as the days and months roll on, let us be conscious that as we deliberate, we are potentially denying these children what everybody agrees should be allowed, namely, the security of being part of a family. I repeat my call that the Minister for Children and Youth Affairs update this House on the status of the children’s rights referendum. The issue cannot be debated any longer and we must change it. There are 2,000 very good reasons to have that referendum.

I thank the Leader for promising to bring the Minister of State with responsibility for European affairs to the House next week to discuss the treaty on stability, co-ordination and governance. Like most of us I am in the process of studying it and will form my own view. I look forward to the upcoming discussion.

I will address two matters, the first of which is the universal periodic review. Members are aware that Ireland’s human rights record was subject to its first universal periodic review hearing last October, and the report of the working group on Ireland’s review, also known as the outcome document, will be adopted by the Human Rights Council during its 19th session on 16 March this year. Of the 126 recommendations contained in the outcome document, the Government has examined and accepted 62, and 49 recommendations are currently under consideration by the Government, with responses to be provided before the Human Rights Council session in March. Some 15 recommendations, the majority of which pertain to reproductive rights and combating racism, have been rejected.

The commitments made by the Government during this process and the potential for further commitments to be made before the adoption of the outcome document should yield significant improvements in the area of prison conditions, children’s rights, gender equality, mental health, freedom of expression and combating racism and discrimination. I ask the Leader to invite the Minister for Justice and Equality, Deputy Shatter, to the Chamber to advise and debate with Senators as to the status of the 49 recommendations under consideration, and to outline how the relevant Departments plan to build on the exemplary consultation process with non-governmental organisations and civil society in the lead-up to Ireland’s review and the next review of 2016.

There is a second issue, although I will not repeat my requests in detail. On 18 and 25 January I asked that the Minister for Children and Youth Affairs be invited to the Seanad to address questions on the proposed children’s referendum, the interim measures for children currently detained in St. Patrick’s institution, the new children and family support agency and the potential to use the Children’s Rights Alliance report card as the basis for this debate. I know there is much talk of referendums in the air but I advise Senators that the children’s referendum needs to take place.

I will give a reason for this. There are 2,000 children in long-term foster care and the referendum would make them eligible for adoption. Once these children turn 18, that right is extinguished, so as the days and months roll on, let us be conscious that as we deliberate, we are potentially denying these children what everybody agrees should be allowed, namely, the security of being part of a family. I repeat my call that the Minister for Children and Youth Affairs update this House on the status of the children’s rights referendum. The issue cannot be debated any longer and we must change it. There are 2,000 very good reasons to have that referendum.

I join in the sympathies expressed by colleagues. Will the Leader call on the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, to come to the House to address several issues of concern to Members? There is agreement in regard to child protection and adoption, but several outstanding issues are of great concern to me. The first of these relates to the promised referendum on children’s rights. Concern has been expressed by various children’s organisations and in the media that the amendment to the Constitution (children’s referendum) Bill is included under section C of the Government’s legislative programme rather than as a priority Bill under section A. Is this a reflection of a reduced commitment to holding the referendum without delay? I hope the Minister can provide an assurance to the House that the referendum will take place in 2012 and that she will update us and involve us in the thinking and the process to date.

The delay in the construction of the national children’s detention centre is a cause of great concern to me and others in this House. The Government, like its predecessors, is acutely aware that the continued detention of children under the adult regime at St. Patrick’s Institution is one of the State’s most glaring violations of human rights and children’s rights. This goes back to the Whitaker report of 1985; I will not rehearse all that has been said on the subject since. The programme for Government includes a firm commitment to end the practice of sending children to St. Patrick’s Institution. An announcement regarding the promised detention centre was expected in the capital expenditure programme, but I was extremely disappointed to discover it was not included. I understand the situation now is that responsibility for building the detention centre has been passed to the Department of Children and Youth Affairs and that the project must be redrawn in light of current economic circumstances. I wish to ask the Minister for a timeline for the redrawing of the costs of the project and an indication of when the project is expected to be completed. She should inform the House of the interim measures her Department intends to put in place to ensure the boys in question are more suitably accommodated until such time as the national detention centre is operational.

I am also concerned about the proposed new agency to oversee children and family services and how it will be decoupled from the Health Service Executive. I understand plans are being drawn up in this regard; it is important that this House be involved in the development of those plans. The report of the child death review panel was lodged with the Minister before Christmas. Will the Leader ask the Minister to outline the panel’s findings to this House? Instead of doing so at a media launch, the Minister should give us an opportunity to discuss how we can prevent future deaths of children in the care of the State.